*1 Pending before the Special Master are Plaintiff's motions for protective orders pursuant to Rule 26(c). For the reasons discussed below, Plaintiff's motions are granted in part and denied in part.

Plaintiff filed two motions for protective orders under Federal Rule 26(c), ECF No. 247 and ECF No. 272, and briefs in support of these motions, ECF No. 248 and ECF No. 273. Defendants filed Briefs in Opposition, ECF No. 257 and ECF No. 282. Leave to file a reply brief was granted and Plaintiff's Reply Brief was filed (ECF No. 300). This Special Master has reviewed all of the filings including extensive exhibits attached to the parties’ briefs and heard oral argument on February 21, 2020.

In ECF 247, Plaintiff seeks protection from six sets of Defendants’ discovery requests[1] asserting three grounds for relief: (1) the requests are beyond the scope of Phase I discovery in that they seek responses relevant to the Defendants’ duty to indemnify; (2) the requests are cumulative and duplicative to requests by other Defendants which Plaintiff has already responded; and (3) the requests exceed the 25 interrogatory limit imposed by FRCP 33(a)(1). Plaintiff's objections to Defendants’ discovery are detailed in chart format and (Exhibit H, ECF No. 248-8) attached to its brief (ECF No. 248).

Defendants, in turn, argue that Plaintiff failed to demonstrate that it meets the requisite “good cause” standard for a protective order; that many of the primary polices exclude coverage both for indemnity and defense relating to pollution claims; and Defendants’ requests are not impermissibly cumulative or duplicative as each Defendant uses different policy language in their respective pollution exclusion and are entitled to seek independent discovery regarding their duty to defend.

Protective orders are governed by Fed.R.Civ.P. 26(c)(1). Under Rule 26(c)(1), a court may grant a protective order preventing the production of discovery to protect a party or entity from “annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1).

Rule 26(c) further stipulates that the moving party must show “good cause” for protection from one (or more) harms identified in Rule 26(c)(1)(A) “with a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (citations omitted). The enumerated harms available to support a protective order are “annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Good cause exists if “specific prejudice or harm will result” from the absence of a protective order. In re Ohio Execution Protocol Litigation, 845 F.3d 231, 236 6th Cir. 2016) (citation omitted).

*2 In light of the extensive briefing, numerous exhibits and oral argument, the record supports a finding of “a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements,” of Plaintiff's burden and prejudice in the absence of the protective order. See Serrano, 699 F.3d at 901.

1. Discovery Relating to Sudden and Accidental

Interrogatories Nos. 1, 2, 3, and 4 of each of Defendants’ Wausau's First Set of Interrogatories, Century's Second Set of Interrogatories and Document Requests and Liberty's Second Set of Interrogatories and Document Requests, all request of Plaintiff various information as to whether certain environmental discharges, injuries, communications, and documents related to a “sudden and accidental” occurrence. In addition, Interrogatory No. 5 of both Century's Second Set of Interrogatories and Document Requests and Liberty's Second Set of Interrogatories and Document Requests relate to the same topic along with each of their Request for Production No. 1 together with that of Defendant's Wausau's Requests for Production Nos. 1 and 2.

Phase I discovery was limited by the Initial Case Management Order (“CMO”) to Defendant insurers duty to defend, lost policies and exhaustion of policy limits. (See Initial CMO, ECF No. 99, issued July 11, 2019 and the authorities cited therein).[2] An order for Phase I Deadlines was entered and amended at the parties’ request (ECF No. 280). The lines have been drawn. Moreover, the particular discovery summarized above was previously considered by the Special Master, and a motion to compel production relative to these issues, filed by Defendants, was denied to as beyond the scope of Phase I in ECF No. 182. To require Plaintiff to respond to these requests, at this juncture, would impose an undue burden and expense to Plaintiff. Plaintiff has demonstrated to the satisfaction of this Special Master that good cause exists in granting a protective order as to this line of Defendants’ inquiry.

2. Defendant's inquiry into: (1) service of Underlying Actions, (2) defense costs, and (3) retention of defense counsel in Underlying Actions are unnecessarily cumulative and duplicative of other discovery

Defendants (1) Wausau's First Set of Interrogatories Nos. 5 – 10 and its First Set of Document Requests 3, 4, 8 and 9; (2) Wausau's Second Set of Interrogatories and Document Requests Nos. 1 – 8 and document request 1 (all of which are also identical to Liberty's Third Set of Interrogatories and Document Requests); and (3) Century's Second Set of Interrogatories and Document Requests, Interrogatory No. 6 and document requests 2 and 3 (all of which are also identical to Liberty's Third Set of Interrogatories and Document Requests), all seek information relative to when defense counsel in the underlying actions were hired and the cost and associated billing statements. Finally, Defendant's Wausau in its Second Set Interrogatories and Document Requests, interrogatory 8 and production request 1 (which are identical to the same numbered requests in Defendant Liberty's Third Set of Interrogatories and Document Requests) seek disclosure and documents relating to the following:

*3 Plaintiff argues that this discovery is unnecessarily duplicative and attached three sets of prior discovery requests to illustrate the duplicative nature of the six above sets. This Special Master agrees. At times, the requests are essentially verbatim of each other. More to the point, however, substantially all of the information sought by Defendants’ has already been subject of three previous sets of discovery. Specifically, Defendants’ First Set of Joint Interrogatories (ECF No. 152-1), Century's October 11, 2019 First Set of Interrogatories and Document Requests, and Travelers’ November 11, 2019 Second Set of Interrogatories and Request for Production all appears to be available through other means (See, e.g., Complaint ¶¶ 66, 67, 76, 113, 117).

Other unnecessary duplication appears, for example, in Interrogatory No. 5 of Defendant Wausau's First Set of Interrogatories which asks:

“Please Identify and Describe any costs for which recovery is sought in This Action relating to the defense of the Underlying Actions.”

In both Defendant's Century and Liberty's respective Second Set of discovery, they ask a substantially identical question in each of their interrogatories Nos. 6. The only material difference is that they limit disclosure of such recoverable cost as to “Phase I of This Action.”

All of these interrogatories appear duplicative of each other.

“A ... court [may] limit the frequency or extent of discovery if it determines that ‘the discovery sought is unreasonably cumulative or duplicative or can be obtained from some other source that is more convenient, less burdensome, or less expensive.’ ” United States v. Holland, 2017 WL 1354178, at *3 (E.D. Mich. Apr. 13, 2017) (quoting Fed.R.Civ.P 26(b)(2)(C)). The information sought by the three Defendant Insurers is indeed “unreasonably cumulative or duplicative” and can be obtained from the unredacted invoices Plaintiff was ordered to produce pursuant to the Special Master's December 6, 2019 Order (ECF No. 231) and December 12, 2019 email clarifying the same. Further, the Special Master directs the parties attention to Defendants’ Joint First Ste of Interrogatories, Nos. 7 – 9; and each of Defendants Century's First Set and Defendant Travelers's Second Set of Interrogatories and Document Requests, Nos. 1 – 8, as responsive to the inquires at issue here.

Given this circumstance, the needs of the case, and the prior orders and discovery at this juncture, to require Plaintiff to respond to these specific requests would impose an undue burden or expense. Defendants are encouraged to more closely coordinate their discovery efforts to contribute to the efficient, effective resolution of the matters in this Phase I, the duty to defend.

This Special Master concludes that Plaintiff is entitled to a protective order as to each of the specific requests discussed herein. The Special Master agrees that Plaintiff has made the requisite showing of good cause. Notwithstanding that fact, the Special Master finds that Plaintiff's proposed order is overbroad and must be tailored as indicated in this Opinion and Order.

*4 The Special Master has considered all of the parties’ arguments in ECF Nos. 247, 248, and 257, for contrary holdings, and to the extent not discussed above, concludes that those arguments are irrelevant, moot, or without merit.

Defendants attached a list of ‘deposition topics’ including 14 Group Topics and 12 Insurer-Specific Topics to their notice (ECF No. 273-4, Page ID.10363-4). Plaintiff's objections are outlined in chart format, ECF No 273-8, and attached to their brief in opposition (ECF No 273). Plaintiff argues that the proposed topics are: irrelevant to Phase I discovery, duplicative, oppressive, and unduly burdensome.

Group Topics

As indicated on the record during the February 21, 2020 hearing, the parties have agreed to Group Topics 1-2, which relate to billing and budgeting practices applied by Plaintiff to its defense counsel in the defense of the Underlying Actions.

Group Topic 3 seeks testimony regarding Plaintiff's “process for selecting and retaining defense counsel and environmental or technical experts and consultants in connection with defending the Underlying Actions.” This topic is appropriate as to the reasonableness of Plaintiff's defense costs, and will be permitted by the Special Master.

Group Topic 4 seeks the “factual basis for Wolverine's allegations that some or all of the Defendants breached a duty to defend Wolverine against the Underlying Actions.” Plaintiff argues that this information is already available to Defendants, citing to numerous discovery responses as well as its own Complaint in this matter, and the Underlying Complaints. This topic is duplicative of information previously provided and will not be permitted by the Special Master.

Group Topic 5 seeks information relating to Plaintiff's “retention of Warner, Norcross & Judd (“WNJ”) in connection with addressing Wolverine's potential or alleged liability for PFAS-related contamination, including the date on which WNJ was engaged...and any retention letters or other agreements concerning these engagements.” This topic is largely duplicative of Group Topics 1-3, but also appears to seek privileged work-product information. The retention letters were previously produced, and it would be unduly burdensome to ask the deponent to testify as to each such correspondence. This topic will not be permitted by the Special Master.

Group Topic 6 seeks testimony regarding “matters addressed at the July 26, 2018 meeting among Wolverine and certain of the Defendants, including any cost-sharing proposals advanced by Wolverine at that meeting.” The method of calculating any cost-sharing in this case necessarily seeks a legal conclusion, and such questioning of a lay witness will not be permitted by the Special Master. “A lay witness cannot testify as to legal conclusions, and such questions exceed the permissible scope of a 30(b)(6) deposition.” Brooks v. Caterpillar Glob. Mining Am., LLC, No. 4:14CV-00022-JHM, 2016 WL 5213936, at *5 (W.D. Ky. Sept. 20, 2016) (citing Cardinal Aluminum Co. v. Cont'l Cas. Co., No. 3:14-CV-857-TBR-LLK, 2015 WL 4068405, 4, 2015 U.S. Dist. LEXIS 86162, 8 (W.D. Ky. July 1, 2015)). Indeed, if “testimony addresses issues with ‘a separate, distinct and specialized meaning in the law different from that present in the vernacular,’ it calls for an impermissible legal conclusion.” Cardinal Aluminum Co., 2015 WL 4068405, at *4 (quoting Torres v. Cty. of Oakland, 758 F.2d 147, 151 (6th Cir. 1985)). The balance of the topic is permissible.

*5 Group Topic 7 is appropriate and will be permitted.

Group Topic 8 seeks testimony regarding “Your position or understanding, including the bases for and facts supporting...whether each and every expense You have incurred to date, or expect to incur in the future, and for which You are seeking reimbursement in This Action, constitutes a defense cost or an indemnity cost.” This topic is largely duplicative of Group Topic 7. The Special Master also notes that Plaintiff has provided Defendants with largely unredacted bills, and the parties have agreed to Group Topics 1-2. This topic is unduly burdensome and particularly onerous to the deponent, and will not be permitted by the Special Master.

Group Topic 9 involves Plaintiff's “procedures for responding to environmental claims or lawsuits....” This topic is appropriate and will be permitted.

Group Topic 10 seeks Plaintiff's “notice and tender of the Underlying Actions to the Defendants...including all communications between Wolverine and the Defendants concerning Wolverine's insurance coverage claims....” Plaintiff argues that this information is already available to Defendants, citing to numerous discovery responses. This topic is duplicative of information previously provided and will not be permitted by the Special Master.

Group Topics 11-12 and 14 all seek legal conclusions and will not be permitted.

Group Topic 13 seeks the “bases for and the Facts supporting Your answers to the interrogatories and requests for admission served upon You by the defendants in This Action.” This topic is unduly burdensome and vague to the deponent as written. Defendants are directed to identify with particularity the discovery requests for which they seek additional clarification. The topic, as written, will not be permitted.

Insurer-Specific Topic 1 asks for “policy periods, limits, terms, and conditions of the North River Policy and the AEIC Policies.” This information was provided by Plaintiff in its Complaint, as well as in answer to written discovery. Interpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony. This topic will not be permitted.

Insurer-Specific Topic 2 seeks “Your position or understanding...as to the per-occurrence and aggregate limits of the primary policies...and the current extent of impairment or exhaustion of those limits, if any.” Like Insurer-Specific Topic 1, this topic requires a legal conclusion and/or is the subject of expert testimony. This topic will not be permitted.

Insurer-Specific Topic 3 asks for the “terms and conditions of Century Indemnity Co. Policy No. XBC 155081....” Interpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony. This topic will not be permitted.

Insurer-Specific Topic 4 seeks the “bases for and the Facts supporting Wolverine's contention that there is an obligation to defend Wolverine with respect to each of the Underlying Actions under the primary policies issued by the Defendants....as well as a statement of the bases for Wolverine's contention that none of the other exclusions in the policies at issue are applicable to bar coverage. Interpretation of an insurance policy beyond the plain language of the policy requires a legal conclusion and/or is the subject of expert testimony. This topic will not be permitted.

*6 Insurer-Specific Topic 5 asks Wolverine to “set forth the extent of that alleged duty [to defend] (whether “all sums or pro rata”) and the bases for, and facts supporting your contention for each such policy.” The determination of calculating defense costs on an all sums or pro rata basis requires a legal conclusion. This topic will not be permitted.

Insurer-Specific Topic 6 seeks the “bases for and all Facts supporting Wolverine's Supplemental Responses and Objections to Defendant Liberty Mutual Insurance Company's First Set of Requests for Admission and Interrogatories to Wolverine dated October 14, 2019.” This topic is appropriate and will be permitted, except to the extent a question calls for a legal conclusion.

Insurer-Specific Topics 7 - 8 seek “bases for and all Facts surrounding and Person(s) involved in Wolverine's locating and identifying the policy numbers and policy periods of the Newly-Alleged Liberty Mutual Policies,” and “the policy periods, limits, terms, and conditions of the Newly-Alleged Liberty Mutual Policies.” These topics are appropriate and will be permitted, except to the extent a question calls for a legal conclusion.

Insurer-Specific Topic 9 seeks the “terms and conditions of the First State policies identified in Wolverine's Complaint but not produced by Wolverine in this action.” This topic is appropriate, except to the extent a question calls for a legal conclusion.

Insurer Specific Topic 10 seeks “facts and evidence upon which Wolverine is relying to support its claim regarding the existence, issuance, execution, terms, provisions, limits, endorsements, and contents of the Alleged AIC Policy.” This topic is appropriate, except to the extent a question calls for a legal conclusion.

Insurer-Specific Topic 11 seeks “facts surrounding and all Persons involved with the negotiation, drafting, and execution of the Prior AIC Release, including the terms therein, payments received thereunder, and claims encompassed by the Release.” This topic is appropriate, except to the extent a question calls for a legal conclusion.

Insurer-Specific Topic 12 seeks the “bases for and all Facts supporting Wolverine's Responses to Defendant AIC's August 23, 2019 First Requests for Admission and Supplemental Discovery Requests, First Interrogatories, and Request for Production to Wolverine.” This topic is appropriate and will be permitted, except to the extent a question calls for a legal conclusion.

Defendants submitted joint notices of deposition of three attorneys working either in-house or as outside counsel for Plaintiff: Ms. Araya, Mr. Latchana, and Mr. Lorden. Plaintiff has objected to these notices, arguing that Defendants have not met the heightened burden that applies to taking opposing counsel's deposition. Defendants have argued that the attorneys have non-privileged information and “recognize that they are permitted only to elicit non-privileged testimony” from these witnesses. ECF No. 282, Page ID 10559. This, however, is not the standard for deposing an opposing attorney.

In Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1987), the Eighth Circuit set out a three-part test designed to limit the circumstances in which opposing counsel must submit to a deposition. The proponent of the deposition must satisfy each prong of the test before the deposition of “opposing counsel” can be taken. First, there must be no other means available to obtain the information other than to depose opposing counsel. Id. Second, the information sought must be relevant and non-privileged. Id. Finally, the information must be crucial to the preparation of the case. Id. The Sixth Circuit adopted the Shelton test in Nationwide Mutual Insurance Co. v. Home Insurance Company. 278 F.3d 621 (6th Cir. 2002).

*7 Defendants have not argued that there are no other means available to obtain the information other than by deposing these attorneys, or that the information sought is crucial to the preparation of the case. Notably, many of the areas Defendants seek to depose opposing counsel regarding are also set forth in Defendants’ Joint Rule 30(B)(6) Notice. Here, Defendants merely argue that these witnesses “possess demonstrably relevant, non-privileged information relating to Phase I.” ECF No. 282, Page ID 10557. As Defendants have failed to meet either the first or the third prong of the Shelton test, the aforementioned attorney deposition notices will be denied without prejudice.

Therefore:

IT IS HEREBY ORDERED that Plaintiff's Motion for Protective Order ECF 247 is GRANTED.

IT IS FURTHER ORDERED that Plaintiff's Motion for Protective Order Regarding Defendants’ Joint Rule 30(B)(6) Notice and Joint Notices of Deposition ECF No. 272 is GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that Counsel for Plaintiff is directed to draft protective orders consistent with this opinion and order and submit the orders to this Special Master.